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Bar Association Joins in Call for Motion of No Confidence

On Monday, 11th February, 2013, the President of the Association, Lawyer Charles Wilkin QC, wrote letters, to the Speaker, Mr. Curtis Martin and also the Prime Minister, Dr. Denzil Douglas, indicating that perhaps the time had come for some action to be taken to allow the motion. Copies of these letters are shared below in this article.

In addition to the letters, Mr. Wilkin also issued a public statement highlighting various legal and constitutional matters. The full text of this statement is now published for the benefit of readers:

The governance system of St. Kitts and Nevis as established by the constitution follows the Westminster model which is also followed by many other commonwealth countries.  We have what is called the separation of powers between three branches of government.  This is to prevent any one branch from having or assuming absolute power and to establish checks and balances on the exercise of political power.  The three branches are the legislature, the executive and the judiciary.

The   legislature (a.k.a. “parliament”)   makes   laws   for   the governance of the country.  It comprises the Governor General and the National Assembly.  The Assembly has elected members and appointed senators.  The Executive comprises the Prime Minister and the Cabinet.  

A person can only be prime minister or a member of Cabinet if he is a member of the National Assembly and in the case of the prime minister he must be an elected member.  Most people are aware of the role of the judicial branch of government, that is the courts which enforce the constitution and laws and decide disputes between residents and between government and residents.   

The courts are independent of the other branches of government.  That is relatively well understood.  What is not very well understood and can be confusing is the separation between the legislative and executive branches of government.  Many people think of them as one and the same for the simple reason that most of the time the Cabinet controls decisions in the legislature because a majority of the legislature are also members of the Cabinet.  

There have been only two instances in the thirty years since independence when the Cabinet did not comprise a majority of the elected members of the Assembly.  The first instance was after the 1993 general elections and the second is right now when there are five elected members in the Cabinet.  There is nothing legally wrong with this. However it exposes the government to a challenge in the National Assembly.

The constitution provides a process whereby any government can be challenged outside of an election and that is by a Motion of No Confidence. This process highlights the separation between the legislative and executive branches of government. The executive is in this respect dependent on the legislature to remain in office.

 

What is the rationale for giving the legislature that power?  The rationale is firstly that the National Assembly is the premier democratic institution in the country.

Secondly, that the appointment of the prime minster after an election is based on his likelihood of commanding the support of the majority of elected members of parliament.  That determination is made right after an election by the Governor General acting in his own deliberate judgment at the time.  

Following his appointment in this manner a prime minister may gain or lose support among elected members of the Assembly.  The Motion of No Confidence provides an opportunity between elections for parliament to test that support.

A third reason in my opinion is to counterbalance the enormous power given by the constitution to the prime minister. As I said the prime minister heads the executive branch of government.

He can advise the governor general at any time to dissolve the national assembly and thereby, within the five year cycle, he controls when elections are held. He has control over the appointment of his cabinet and, as we have seen more than once in our history, he can have members of cabinet removed.  The powers of the prime minister are best described in this quotation from the late sir fred phillips, well known former governor and constitutional lawyer. He said this:

“We must never forget that in small communities such as Caribbean states, it is easy for the prime minister wielding an all pervasive influence, to manipulate almost everything and everybody, especially since, in most territories, he (or she) is the appointing authority in respect of almost every person on every board operating in the public domain”.

The prime minister also has enormous power over the finances and administration of the country and the policies by which the country is governed.  In this way he has largely under his influence the economic and other destiny of the country.  Were this power to be absolute we would effectively have what a prominent regional constitutional scholar calls “dictatorship by prime minister”. A barrier to that undesirable state is the Motion of No Confidence by which a prime minister can be removed.  Therein lies the real separation between the legislative and executive branches of government and the fundamental importance in our system of the vote of no confidence.

I have heard touted the view that a majority of the elected members of the legislature can call on the Governor General to remove an appointed prime minister on the basis that he no longer commands the support of a  majority of elected members of the assembly.  The Governor General has no such power.  

The Governor General has power to appoint a prime minister after an election using his judgment as to which elected member is likely to command the support of the majority of elected members.  His role then ends until there is another election or the prime minister vacates office.  The Governor General can appoint a prime minister to replace a prime minister who resigns either with or without a Vote of No Confidence.  So long however as a  prime minister appointed after an election remains in office the only way outside of an election to remove him is by a Vote of No Confidence.

A word on the role of individual members of the Assembly.  A member of the Assembly, elected or senator, is entitled to vote however he or she chooses on any matter which comes before the Assembly.  That right applies even if the member is also a member of Cabinet.  Members of Cabinet have collective responsibility and can be removed by the prime minister.  But this does not prevent the member while still a member of Cabinet from exercising his or her vote in the Assembly as he or she sees fit.

You will find nowhere in the sections of the constitution dealing with parliament the words political party.  Our system is a constituency system.  Each constituency elects a representative, not a party. These representatives have the fundamental right to associate with others in political parties but they are not legally tied to such association and can establish or change allegiances as they like.

A good example is that of former Prime Minister Mitchell of St. Vincent and the Grenadines who, before he became prime minister, ran as an independent candidate without a party but became prime minister because, after the election, he had the support of the majority of elected members. So while in practice political parties play a significant role they do not have the constitutional power to determine who should be prime minister.

Some countries have legislated for the formal role of political parties in their parliament. That is usually the case where there is proportional representation based on the popular vote.  We have a constituency system not a system of proportonal representation based on popular vote.

It is interesting to note too that political parties are not legal entities in St. Kitts and Nevis.  A political party cannot make contracts. It cannot hold property. Contracts for goods and services to political parties, as is the case with clubs and unincorporated sports organisations and many churches, are made in the names of individuals because an unincorporated body of this type cannot sue or be sued.   

For the reasons I have given, a Motion of No Confidence is fundamental to our system of governance and our democracy and should not be subverted or unduly delayed. The constitutional provisions are balanced because the prime minister can avoid a Motion of No Confidence by advising the Governor General to dissolve the Assembly before the motion is debated in the Assembly and even after the motion is carried he has the option, within three days, to resign or to advise the Governor General to dissolve the Assembly. If he chooses the latter then he and the Cabinet remain in office until an election is held. Such election must be held within 90 days of the dissolution of the Assembly.

The constitution does not state a time limit within which a Motion of No Confidence should be brought before the Assembly. However, the Westminster system is based on unwritten conventions as well as the constitution and laws made under it. The convention in commonwealth countries as to a Motion of No Confidence is that it should be brought before the parliament at an early date.   That makes sense because of its fundamental importance.

The guardian of the Assembly is the Speaker. He should control the timing of the motion being debated in the National Assembly.  

Two months have passed since the Motion of No Confidence was lodged. The National Assembly has met twice in that time. In my opinion two months is an inordinate delay in bringing before the Assembly one of the most fundamental matters which can be determined by the Assembly.

Below are the letters to the Speaker and the Prime Minister:

letter-to-prime-minister-from-bar3

letter-to-speaker-from-bar2

 

 

 

 

 

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